For more than two decades, the Minsk Group, co-chaired by Russia, the United States, and France, has served as a steward over the dispute resolution process involving Nagorno-Karabakh, a tiny enclave of ethnic Armenians belonging to Azerbaijan. Although described as a frozen conflict, the conflict is fluid, dangerous, and increasingly complicated by overlapping interests and spheres of influence. This Article concentrates on the power-shifting attempts to facilitate a solution via use of the soft law forum of the Minsk Group, problematizing the perceived theoretical advantages found in the literature that instantiate soft law's superior potential for solutions. That powerful countries may utilize informal processes and forums to pursue parochial interests while forestalling peaceful settlement suggests a need to examine critically efforts to use soft law as an expedient to norm development.
Saturday, April 22, 2017
Rossi: Nagorno-Karabakh and the Minsk Group: The Imperfect Appeal of Soft Law in an Overlapping Neighborhood
Ratner: Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction
When a state expropriates a foreign investment in violation of a bilateral or other treaty on investment protection and a foreign investor sues, where should a tribunal look for the standard of compensation -- to the amount specified in the treaty, to an external standard for violations of internationally law generally, or elsewhere? Investor-state tribunals have offered wildly different answers to this question, trapped in a paradigm set by the Permanent Court of International Justice ninety years ago that distinguishes between so-called lawful and unlawful expropriations. This article evaluates and criticizes the caselaw of tribunals and proposes a new framework for compensation grounded in five key purposes of a remedy in the context of contemporary investor-state relations. It also clarifies the economic and legal significance of valuing expropriated investments using information available at the date of expropriation as opposed to the date of the award. The article proposes that, instead of the current lawful/unlawful distinction, compensation take account of specific aspects of the expropriatory act, including whether the state's failure to pay was based on a bona fide disagreement with the investor and whether the state violated the procedural criteria spelled out in an investment treaty. It concludes with a consideration of the implications of this approach for violations of other provisions of investment treaties.
Friday, April 21, 2017
- April 27, 2017: Anne van Aaken (Univ. of St. Gallen), Behavioral Economics and Global Public Goods and Global Commons
- May 4, 2017: Marie Jacobsson (Legal Admiser, Ministry of Foreign Affairs, Sweden), Protecting the Environment in Relation to Armed Conflict: Are Legal Measures Possible? Some Reflections on the Work of the ILC
- May 11, 2017: Matthew Happold (Univ. of Luxembourg), Immunity from Execution of Military and Cultural Goods
- May 18, 2017: James Harrison (Univ. of Edinburgh), “Judicial Review” of Coastal State Enforcement Action by International Courts and Tribunals: The Emergence of Dynamic and Expansive Interpretations of UNCLOS Safeguards
- Le TTIP – Partenariat Transatlantique de Commerce et d’Investissement
- Clotilde Jourdain-Fortier, Le TTIP : Fenêtre sur rue
- Hanns Ullrich, The Transatlantic Trade and Investment Partnership (TTIP) : Extending Trade Policy to Domestic Markets
- Ernst-Ulrich Petersmann, Transatlantic Free Trade Agreements : Lack of EU Leadership for Reforming Trade and Investment Law ?
- Pierre Defraigne, Trois objections fondamentales contre le TTIP (Traité commercial transatlantique)
- Vassilis Hatzopoulos, Les techniques de libéralisation de la prestation de services sous le TTIP
- Clotilde Jourdain-Fortier, Vers un marché transatlantique de la santé ou les enjeux de la coopération réglementaire du projet de Partenariat transatlantique de commerce et d’investissement (TTIP) dans le domaine pharmaceutique
Many countries have attempted to transition to democracy following conflict or repression, but the basic meaning of transitional justice remains hotly contested. In this book, Colleen Murphy analyses transitional justice - showing how it is distinguished from retributive, corrective, and distributive justice - and outlines the ethical standards which societies attempting to democratize should follow. She argues that transitional justice involves the just pursuit of societal transformation. Such transformation requires political reconciliation, which in turn has a complex set of institutional and interpersonal requirements including the rule of law. She shows how societal transformation is also influenced by the moral claims of victims and the demands of perpetrators, and how justice processes can fail to be just by failing to foster this transformation or by not treating victims and perpetrators fairly. Her book will be accessible and enlightening for philosophers, political and social scientists, policy analysts, and legal and human rights scholars and activists.
- Ramses A. Wessel, You Can Check out Any Time You like, but Can You Really Leave?
- Daniël M. Grütters, NATO, International Organizations and Functional Immunity
- Yaraslau Kryvoi, Procedural Fairness as a Precondition for Immunity of International Organizations
- Hao Duy Phan, The Association of Southeast Asian Nations: International Legal Personality and Its Treaty-Making Power
- Gloria Fernández Arribas, The Institutionalization of a Process: The Development of the Kimberley Process towards an International Organization
- Zsuzsanna Deen-Racsmány, The Relevance of Disciplinary Authority and Criminal Jurisdiction to Locating Effective Control under the ARIO
Thursday, April 20, 2017
What do equality, dignity and rights mean in a world where eight men own as much wealth as half the world's population? Contesting World Order? Socioeconomic Rights and Global Justice Movements examines how global justice movements have engaged the language of socioeconomic rights to contest global institutional structures and rules responsible for contributing to the persistence of severe poverty. Drawing upon perspectives from critical international relations studies and the activities of global justice movements, this book evaluates the 'counter-hegemonic' potential of socioeconomic rights discourse and its capacity to contribute towards an alternative to the prevailing neo-liberal 'common sense' of global governance.
International tribunals confront a “Judicial Trilemma”: specifically the states that design, and the judges that serve on, international courts face an interlocking series of trade-offs among three core values: (i) judicial independence, the freedom of judges to decide cases on the facts and the law; (ii) judicial accountability, structural checks on judicial authority found most prominently in international courts in reappointment and reelection processes; and (iii) judicial transparency, mechanisms that permit the identification of individual judicial positions (such as through individual opinions and dissents). The Trilemma is that it is possible to maximize, at most, two of these three values. Drawing on interviews with current and former judges at leading international courts, this paper unpacks the logic driving the Judicial Trilemma, and traces the varied ways in which this logic manifests itself in the design and operation of the International Court of Justice, European Court of Human Rights, Court of Justice of the European Union, and the World Trade Organization’s Appellate Body. The Trilemma introduces a new set of perspectives that enables us to conceptualize the limits of judicial independence at international courts, and identify strategies to enhance this independence.
International law has played a crucial role in the construction of imperial projects. Yet within the growing field of studies about the history of international law and empire, scholars have seldom considered this complicit relationship in the Americas. The Hidden History of International Law in the Americas offers the first exploration of the deployment of international law for the legitimization of U.S. ascendancy as an informal empire in Latin America. This book explores the intellectual history of a distinctive idea of American international law in the Americas, focusing principally on the evolution of the American Institute of International Law (AIIL). This organization was created by U.S. and Chilean jurists James Brown Scott and Alejandro Alvarez in Washington D.C. for the construction, development, and codification of international law across the Americas. Juan Pablo Scarfi examines the debates sparked by the AIIL over American international law, intervention and non-intervention, Pan-Americanism, the codification of public and private international law and the nature and scope of the Monroe Doctrine, as well as the international legal thought of Scott, Alvarez, and a number of jurists, diplomats, politicians, and intellectuals from the Americas. Professor Scarfi argues that American international law, as advanced primarily by the AIIL, was driven by a U.S.-led imperial aspiration of civilizing Latin America through the promotion of the international rule of law. By providing a convincing critical account of the legal and historical foundations of the Inter-American System, this book will stimulate debate among international lawyers, IR scholars, political scientists, and intellectual historians.
Il Dipartimento di Giurisprudenza dell’Università di Ferrara organizza un seminario dal titolo Universal Civil Jurisdiction – Which Way Forward?, in cooperazione con i Gruppi di interesse sul Diritto internazionale ed europeo dei diritti umani e sul Diritto internazionale privato e processuale della Società italiana di diritto internazionale e diritto dell’Unione europea (SIDI). L’iniziativa intende proporre un’analisi a tutto tondo dei problemi legati all’esercizio della giurisdizione universale civile – una questione attualmente pendente di fronte alla Grande Camera della Corte europea dei diritti umani nell’affare Nait-Liman c. Svizzera.
The seminar aims at an all-round reassessment of the problems related to the exercise of universal civil jurisdiction. The challenge of providing appropriate venues for enforcing the right to reparation of victims of serious human rights violations raises a number of complex issues in the perspective of public and private international law. The interaction between specialists of both fields will provide the opportunity for an in-depth analysis of these open problems, which are currently under scrutiny by the Grand Chamber of the European Court of Human Rights in the case of Nait-Liman v. Switzerland.
Wednesday, April 19, 2017
- Lisa Hultman & Karin Johansson, Responding to Wartime Sexual Violence: UN Peacekeeping and the Protection Agenda
- Stacey Henderson, The Arms Trade Treaty: Responsibility to Protect in Action?
- Jawoon Kim & Alan Bloomfield, Argumentation, Impact, and Normative Change: Responsibility to Protect after the Commission of Inquiry Report into Human Rights in North Korea
- Ian Hall, Perilous Interventions and the Responsibility to Protect
- Kudrat Virk, Perilous Interventions and the Indian Debate on R2P: A Case of Limited Engagement and Missed Opportunity
- James Pattison, Perilous Noninterventions? The Counterfactual Assessment of Libya and the Need to be a Responsible Power
- Sandra Destradi, India’s Reluctant Approach to R2P: Lessons from Perilous Interventions
White: Bridging Divides in Transitional Justice: The Extraordinary Chambers in the Courts of Cambodia
The backdrop to Bridging Divides in Transitional Justice is Cambodia’s history of radical Communist revolution (1975–1979) under the brutal Khmer Rouge regime, and the culture of impunity and silence imposed on the society by successive national governments for close to three decades. Dialogue on the suppressed past began in 2006 as key figures of the regime were brought before the in situ internationalised criminal court, the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC forms part of the panoply of international criminal courts of the post-Cold War era. The book engages with the dissonance between the expressivism of idealised international criminal trials and their communicative or discursive value within the societies most affected by their operation. An alternative view of the transitional trial is posited as the author elucidates the limits of expressivism and explores the communicative dynamics of ECCC trial procedure which have precipitated unprecedented local debate and reflection on the Khmer Rouge era.
The book provides a timely and nuanced analysis of the ECCC’s politically contentious and frequently criticised proceedings by examination of the trial dialogue in the Court’s first two cases. From transcripts of the proceedings, exchanges between trial participants including witnesses, civil parties and the accused, are examined to show how, at times, the retributive proceedings assumed the character of restorative justice and encompassed significant dialogue on current social issues, such as the victim/perpetrator equation and the nature of ongoing post-traumatic stress disorder flowing from the events that took place under this violent regime The Court’s capacity for representative and discursive proceedings is attributed to the substantive inclusion of the voice of the victim in proceedings, a modified inquisitorial procedure, narrative testimony and role-sharing between national and international court actors.
What do we mean when we use the term 'failed states'? This book presents the origins of the term, how it shaped the conceptual framework for international development and security in the post-Cold War era, and why. The book also questions how specific international interventions on both aid and security fronts - greatly varied by actor - based on these outsiders' perceptions of state failure create conditions that fit their characterizations of failed states. Susan L. Woodward offers details of international interventions in peacebuilding, statebuilding, development assistance, and armed conflict by all these specific actors. The book analyzes the failure to re-order the international system after 1991 that the conceptual debate in the early 1990s sought - to the serious detriment of the countries labelled failed or fragile and the concept's packaging of the entire 'third world', despite its growing diversity since the mid-1980s, as one.
This book offers a thorough, critical, and accessible analysis of the American Convention on Human Rights which is the main human rights treaty of the Americas. The authors closely review the jurisprudence and the binding judgments of the two institutions charged with interpreting the Convention: The Inter-American Court of Human Rights and The Inter-American Commission on Human Rights.They focus on the rights most developed by the Court and Commission, namely the rights to equality, life, humane treatment, personal liberty, property, due process and judicial protection, as well as the freedom of expression and reparations. They examine the case law with a victim-centered lens while identifying key jurisprudential developments, discussing critical areas that lack consistency and rigor, and proposing alternative conceptual approaches.
- William Tobey, Peering down from the Summit: The Path to Nuclear Security 2010–2016 and beyond
- Christopher Kobrak, Interwar Financial Summits: The Economic Consequences and Lessons of Attempts to Repair a Broken World
- Selcuk Colakoglu & Mehmet Hecan, Turkey in Global Governance: An Evaluation of Turkey’s G20 Presidency and the Antalya Summit 2015
- Jonathan Luckhurst, The G20’s Growing Political and Economic Challenges
Tuesday, April 18, 2017
- Erica Owen & Stefanie Walter, Open economy politics and Brexit: insights, puzzles, and ways forward
- Mark Blyth & Matthias Matthijs, Black Swans, Lame Ducks, and the mystery of IPE's missing macroeconomy
- Henry Farrell & Abraham Newman, BREXIT, voice and loyalty: rethinking electoral politics in an age of interdependence
- Vivien A. Schmidt, Britain-out and Trump-in: a discursive institutionalist analysis of the British referendum on the EU and the US presidential election
- Aida A. Hozić & Jacqui True, Brexit as a scandal: gender and global trumpism
- Original Articles
- Leonard Seabrooke & Kevin L. Young, The networks and niches of international political economy
- Heike Döring, Rodrigo Salles Pereira dos Santos & Eva Pocher, New developmentalism in Brazil? The need for sectoral analysis
The Law of Nations and the United States Constitution offers a new lens through which anyone interested in constitutional governance in the United States should analyze the role and status of customary international law in U.S. courts. The book explains that the law of nations has not interacted with the Constitution in any single overarching way. Rather, the Constitution was designed to interact in distinct ways with each of the three traditional branches of the law of nations that existed when it was adopted--namely, the law merchant, the law of state-state relations, and the law maritime. By disaggregating how different parts of the Constitution interacted with different kinds of international law, the book provides an account of historical understandings and judicial precedent that will help judges and scholars more readily identify and resolve the constitutional questions presented by judicial use of customary international law today. Part I describes the three traditional branches of the law of nations and examines their relationship with the Constitution. Part II describes the emergence of modern customary international law in the twentieth century, considers how it differs from the traditional branches of the law of nations, and explains why its role or status in U.S. courts requires an independent, context-specific analysis of its interaction with the Constitution. Part III assesses how both modern and traditional customary international law should be understood to interact with the Constitution today.
- Onder Bakircioglu & Brice Dickson, The European Convention in Conflicted Societies: The Experience of Northern Ireland and Turkey
- Natalie L. Dobson & Cedric Ryngaert, Provocative Climate Protection: EU ‘Extraterritorial’ Regulation of Maritime Emissions
- Pok Yin S. Chow, Reservations as Unilateral Acts? Examining the International Law Commission's Approach to Reservations
- Bjørn Kunoy, Assertions of Entitlement to the Outer Continental Shelf in the Central Arctic Ocean
- Alan Greene, Defining Terrorism: One Size Fits All?
- Chris O'Meara, Should International Law Recognize a Right of Humanitarian Intervention?
- Fiona de Londras & Kanstantsin Dzehtsiarou, Mission Impossible? Addressing Non-Execution Through Infringement Proceedings in the European Court of Human Rights
- Shorter Article and Notes
- Jed Odermatt, The Development of Customary International Law by International Organizations
The birth of international criminal law is typically traced to the post-war prosecutions of Nazi and Japanese war criminals by the Allied powers, when in fact the Great Powers frequently turned to internationalized criminal or quasi criminal forums, as well as the rhetoric of ‘humanity’ and ‘civilization,’ to project power, establish narratives, manage public opinion, express dissatisfaction, and defend humanitarian values in the century after the Napoleonic wars. That these stories have been relegated to a narrative hinterland belies the important role each played in establishing vocabulary for international criminal law and shaping expectations of accountability. The purpose of this paper is to restore one such significant but unexplored caesure; the trial of four Chinese officials before an ‘International Commission’ by the Great Powers in the wake of the inter-religious violence that characterized the Boxer Uprising.
Although the Commission has recently received some attention by a few dedicated historians, it has so far escaped close scrutiny within the international criminal law community. Accordingly, a number of questions about the trial have remained unanswered. What actually happened at Paoting-Fu? Was it fair? Why did this operation, unlike others, result in an international criminal trial? What meaning did the trial have for the belligerents and the communities they represented? What consequences did the trial have for the development of international criminal law?
Drawing on previously unexplored material from state archives, published and unpublished missionary correspondence and military memoirs, and contemporaneous press reports, this paper addresses these questions in four parts. Part 2 of this article first sets the scene by briefly describing the state of the armed conflict in October 1900, then recounts the story of the Commission’s day-to-day operation, culminating in the execution of three Chinese officials. Part 3 sets the trial in its legal, cultural and strategic context, positioning it as an event framed by, among other factors, the concomitant coherence of international criminal law and a shift in thinking about the role of collective punishment in war. Part 4 highlights how the relevant constituencies viewed the trials, and traces the influence of this seminal experiment with individual accountability for international crimes on later efforts to create an international jurisdiction to try the Kaiser in the wake of the First World War. Finally, Part 5 explores the judicial character and fairness of the Commission.
- Armand de Mestral, Introduction
- Armand de Mestral, Investor-State Arbitration between Developed Democratic Countries
- Céline Lévesque, The European Commission Proposal for an Investment Court System: Out with the Old, In with the New?
- Charles-Emmanuel Côté, An Experienced, Developed Democracy: Canada and Investor-State Arbitration
- David Schneiderman, Listening to Investors (and Others): Audi Alteram Partem and the Future of International Investment Law
- Armand de Mestral & Robin Morgan, Does Canadian Law Provide Remedies Equivalent to NAFTA Chapter 11 Arbitration?
- Armand de Mestral & Lukas Vanhonnaeker, The Impact of the NAFTA Experience on Canadian Policy Concerning Investor-State Arbitration
- David A. Gantz, Investor-State Dispute Settlement in US Law, Politics and Practice: The Debate Continues
- Marc Bungenberg, A History of Investment Arbitration and Investor-State Dispute Settlement in Germany
- Carmen Otero García-Castrillón, Spain and Investment Arbitration: The Renewable Energy Explosion
- Csongor István Nagy, Central European Perspectives on Investor-State Arbitration: Practical Experiences and Theoretical Concerns
- August Reinisch, The European Union and Investor-State Dispute Settlement: From Investor-State Arbitration to a Permanent Investment Court
- Luke Nottage, Investor-State Arbitration Policy and Practice in Australia
- Shotaro Hamamoto, Debates in Japan Over Investor-State Arbitration with Developed States
- Younsik Kim, Investor-State Arbitration in South Korean International Trade Policies: An Uncertain Future, Trapped by the Past
- Hugo Perezcano, Risks of a Selective Approach to Investor-State Arbitration
- Ucheora Onwuamaegbu, Limiting the Participation of Developed States: Impacts on Investor-State Arbitration
- Armand de Mestral, Investor-State Arbitration and Its Discontents: Options for the Government of Canada
Monday, April 17, 2017
The waters of the Silala/Siloli, located in the hyper-arid Atacama Desert dividing Bolivia and Chile, originate in Bolivia, flow for a mere four kilometers before entering Chile, and flow for four more kilometers before commingling with the San Pedro tributary and debouching into the Pacific Ocean. And yet this tiny basin, located in one of the most remote and inhospitable places on earth, forms what the United Nations calls one of the most hydropolitically vulnerable basins in the world. Bolivia claims that a Chilean concessionaire artificially diverted the waters in 1908 and Chile now illegally draws from the waters, long after Bolivia terminated the concession agreement. Chile claims the waters form a natural transboundary watercourse that would flow as a servitude into Chile even if the waters never had been augmented or directed by the canals. Questions of law and fact blur the legal status of these waters, their possible relationship to a transboundary aquifer, and the customary application of equitable and reasonable use standards regarding a river, if indeed the Silala/Siloli is a river. As the case heads toward The Hague for consideration by the International Court of Justice, this Article concentrates on the evolving relationship between these historically troubled riparians, borrowing from the sociological framework analysis of Erving Goffman to investigate how international dispute settlement mechanisms may indeed be challenged by ceremonial forms of dramaturgy that play more to domestic audiences than pacific settlement outcomes. In the Anthropocene age, acute concerns about fresh water and non-navigable watercourses now have the potential to erupt into major conflicts between states. These conflicts draw critical attention to the evolving relationship between groundwater and surface water regimes, certainly in the great hydrographic basins of the world and, as this case details, in one of the smallest and most remote catchments on earth.
Kleinlein: Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control
This article fathoms the contestability of a European Consensus and its significance for the legitimacy of the European Court of Human Rights (ECtHR). A ‘combined legitimation strategy’ of the ECtHR, comprising European Consensus and the new procedural approach to the margin of appreciation indicated by several judgments of the ECtHR, opens up spaces for democratic contestation and deliberation. Progressive, rights-friendly judgments that take a mere trend in ‘vanguard’ State Parties for a European Consensus will probably provoke domestic contestation in ‘laggard’ states. This potential backlash can be productive because it can subsequently impart additional legitimation on the ECtHR’s judgment. Procedural rationality control, in turn, ensures that this avenue of democratic legitimation is kept open and that there are institutional structures and processes to consider and balance human rights adequately in domestic debates. Combining consensus-based arguments with a procedural approach to the margin of appreciation reconciles the impact of a European Consensus and the need for democratic deliberation. High standards in domestic procedures can possibly rebut the presumption in favour of the solution adopted by the majority of Convention States. Potentially, this approach also allows democratic domestic law-making institutions to react to judgments of the ECtHR based on a European Consensus.
The economic turmoil of the past years has drawn attention to the role of financial institutions play vis-à-vis human rights. This seminar seeks to go beyond the ubiquitous tripartite “protect, respect, remedy” business & human rights frame; special emphasis will be placed on the generation of accountability and legitimacy within private law-making processes in financial markets. We will discuss the processes and actors of developing self-regulatory norms.
This workshop provides a platform for experienced and early-stage academics as well as PhD and research students to share, discuss, and develop their work on critical issues. The objective is to optimise research impact of our participants by engaging the different communities of practice in law, political science, management studies, or accounting in this interdisciplinary field of business and human rights.
The symposium intends to provide a platform for the exchange of ideas on a topic of considerable debate and divergent views. It will highlight and confront, among other issues, the appointment of experts, their roles and obligations, the modes of using experts within the framework of the proceedings, and the means of assessing expert evidence available to the judge. The interaction of highly experienced and specialised participants will provide for an in-depth practical and theoretical analysis of the topic, addressing current and emerging trends in relation to expert involvement in international dispute, as well as the scope for reform in this field.
Kadelbach, Kleinlein, & Roth-Isigkeit: System, Order, and International Law: The Early History of International Legal Thought from Machiavelli to Hegel
- Stefan Kadelbach, Thomas Kleinlein & David Roth-Isigkeit, Introduction
- David Roth-Isigkeit, Niccolò Machiavelli's International Legal Thought: Culture, Contingency, and Construction
- Kirstin Bunge, Francisco de Vitoria: A Redesign of Global Order on the Threshold of the Middle Ages to Modern Times
- Tobias Schaffner, Francisco Suárez S. J. on the End of Peaceful Order among States and Systematic Doctrinal Scholarship
- Merio Scattola, Jean Bodin on International Law
- Andreas Wagner, Alberico Gentili: Sovereignty, Natural Law, and the System of Roman Civil Law
- Thomas Hüglin, Althusius: Back to the Future
- Stefan Kadelbach, Hugo Grotius on the Conquest of Utopia by Systematic Reasoning
- Jonas Heller, Orders in disorder: The Question of a Sovereign State of Nature in Hobbes and Rousseau
- Tilman Altwicker, The International Legal Argument in Spinoza
- Vanda Fiorillo, States as Ethico-Political Subjects of International Law: The Relationship between Theory and Practice in the International Politics of Samuel Pufendorf
- Thomas Kleinlein, Christian Wolff: System as an Episode?
- Christian Volk, The Law of the Nations as the Civil Law of the World: On Montesquieu's Political Cosmopolitanism
- Simone Zurbuchen, Emer de Vattel on the Society of Nations and the Political System of Europe
- Bastian Ronge, Towards a System of Sympathetic Law: Envisioning Adam Smith's Theory of Jurisprudence
- Benedict Vischer, Systematicity to Excess Kant's Conception of the International Legal Order
- Carla De Pascale, Fichte and the Echo of his Internationalist Thinking in Romanticism
- Sergio Dellavalle, The Plurality of States and the World Order of Reason: On Hegel's Understanding of International Law and Relations
- Martti Koskenniemi, What should the History of the Law of Nations Become?
- Nehal Bhuta, State Theory, State Order, State System: Ius Gentium and the constitution of Public Power
- Thomas Duve, Spatial Perceptions, Juridical Practices, and Early International Legal Thought around 1500: From Tordesillas to Saragossa
- Mónica García-Salmones, The Disorder of Economy? The first Relectio de Indis in a Theological Perspective
- Gunther Hellmann, Power and Law as Ordering Devices in the System of International Relations
- Armin von Bogdandy & Sergio Dellavalle, Universalism and Particularism: A Dichotomy to Read Theories on International Order
Sunday, April 16, 2017
What happens after an international court finds a state has violated international law? Many realize today that states often fail to comply with such judgments. International courts like the European Court of Human Rights (“ECHR”) have to rely on the help of Non-Governmental Organizations (“NGOs”) to shame states into compliance. In 2011, the body charged with enforcing judgments of the ECHR launched a new website dedicated to publishing reports by NGOs that criticize states for noncompliance with ECHR judgments. This website published hundreds of reports, as well as the responses of some accused states. The Article analyzes all the reports published in the first four years since the website was created. This analysis, together with interviews with many of the NGO lawyers involved, sheds light on the way reputational sanctions work in international law. It reveals that NGOs focus most of their attention on legally important cases and on cases that address severe violations. It also shows that NGOs focus on states that usually comply with their international obligations instead of on states that regularly fail to comply with international law.
Brockman-Hawe: Bismarck's Proposal for an International Criminal Court to Assign Responsibility for the Franco-Prussian War
The idea of punishing aggressive war is routinely presented as having been first conceived of in the wake of the First World War. This conventional narrative is incorrect; the intellectual seed for the project had begun to take root long before, in the reactions to the interstate conflicts of the nineteenth century. This article explores one of the most significant moments from aggression’s unappreciated ‘pre-history’; Chancellor Bismarck’s pursuit of a trial before an international criminal court of the Franco-Prussian War’s (1870-1) French ‘intellectual originators and instigators.’ Although the proposal ultimately failed to attract the political and public support necessary for its implementation, it prompted in its own time an unprecedented discussion on the viability of international criminal responsibility for aggression and international criminal courts. The proposal later took on new life as both a precedent and an anti-precedent as these ideas resurfaced periodically after 1870.
The goal of this paper is to restore Bismarck’s proposal to its rightful place in the story of the crime’s development. At stake is more than historic fidelity; contemporary expectations of what international criminal law can accomplish, what circumstances should or could accompany international criminal law’s invocation, and what the parameters of the crime of aggression should be are shaped by such histories. As the 2010 Kampala Amendments to the Rome Statute are now a single accession away from accumulating the requisite number of ratifications to come into effect, raising the prospect that the International Criminal Court will imminently be tasked with adjudicating the first aggression case in over seventy years, the need for reflection on these issues has taken on unusual salience.
Current military campaigns are not waged solely on the physical battlefield, but in multiple other arenas. One such arena is lawfare: legal activity that supports, undermines, or substitutes for other types of warfare. In today’s law-rich environment, with an abundance of legal rules and legal fora, strategists must evaluate the full scope of possible legal argumentation. Lawfare can substitute for warfare where it provides a means to compel specified behavior with fewer costs than kinetic warfare, or even in cases where kinetic warfare would be ineffective. As a result, lawfare can be strategically integrated into military command structures to bring about desired outcomes.
Why might national judges facilitate or tacitly undermine state respect for international law and IC legal rulings? I discuss two diverging optics – the luxury optic and the fail-safe optic – through which national judges approach international law and IC review of state actions. The luxury optic suggests that although ICs may exercise valid legal authority to generate binding legal rulings, IC rulings are external and domestically superfluous, providing neither binding nor guiding jurisprudence relevant in the national realm. The fail-safe optic, by contrast, insists that IC rulings must guide and perhaps even bind national legal review. I argue that political motives, rather than legal constraints, help to define and shape national judicial optics. Using illustrations of national judicial responses to decisions of a diverse array of international courts, the chapter explains how these optics end up shaping national legal and political cultures of constitutional obedience to international law. Finally, I discuss and illustrate an intermediate position where national supreme courts defend the supremacy of the national constitution while using their constitutional authority to support national adherence to international law as interpreted by ICs.